Third, the Constitution itself excludes it. The only “official immunities” the Constitution recognizes are that “Senators and Representatives * * * shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place”. (footnote 1) Although perhaps no pure “Speech or Debate in either House” could constitute a “war crime” (in contrast to an actual vote in favor of some bill that purported to authorize an unconstitutional “war”), all “war crimes” should fairly fall within the category “Felony”; and some “war crimes” could be prosecuted specifically as “Treason”, if they amounted to “levying War against the[ United States]”, as waging a “war of terrorism” against WE THE PEOPLE certainly would. So the constitutional immunity, by its explicit terms, would not “privilege[ ]” the perpetrators of such acts “from Arrest” even in the very course of their performing their official functions. And the Constitution would hardly bother to allow for the actual “Arrest” of “Senators and Representatives” at those times, unless it presumed that their “Arrest[s]” could be followed by further criminal investigations, presentments or indictments, trials, convictions, and punishments against which no “official immunity” could be interposed. (footnote 2)
1.) U.S. Const. art. I, § 6, cl. 1.
2.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1625-1626.
One need only recall that the Supreme Court upheld the supposed legality of the mass evacuation of Japanese-Americans during World War II on the grounds of the possibility of disloyalty among some of them, but refused to rule on the question of subsequent indefinite detention in concentration camps of the individuals so evacuated. (footnote 1) Yet, later on, Congress “acknowledge[d] the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II”, and determined to “make restitution to those individuals of Japanese ancestry who were interned” and to “discourage the occurrence of similar injustices and violations of civil liberties in the future”. (footnote 2) When Congress did so, it necessarily recognized and repudiated the viciously erroneous nature of the Court’s actual holding on the evacuation, as well as its evasion of the issue of detention, in Korematsu—which acknowledgment, recognition, and repudiation for all intents and purposes constituted a legislative declaratory judgement reversing that holding and condemning that evasion. Moreover, Congress agreed to “make restitution” to the aggrieved Japanese, in the form of monetary compensation. (footnote 3) Thus, in effect, the victims of the evacuation and internment, having lost in the judicial system, took a political appeal of Korematsu to Congress and at length prevailed with a judgment of law and an award of damages—proving that the General Governmentactually operates, when public officials properly operate it, on the principle of legislative, not judicial, supremacy. (footnote 4)
1.) Korematsu v. United States, 323 U.S. 214 (1944). The Court did rule, however, that a Japanese-American citizen, whose loyalty the government conceded, could not be so detained. Ex parte Endo, 323 U.S. 283 (1944). During the war, however, the government never conceded the loyalty of most detainees—but it never proved their disloyalty, either.
2.) An Act To implement recommendations of the Commission on Wartime Relocation and Internment of Citizens, Act of 10 August 1988, Pub. L. 100-383, § 1(1), (4), and (6), 102 Stat. 903, 903.
3.) See Act of 10 August 1988, § 105(a)(1), 102 Stat. at 906 (“to each eligible individual the sum of $20,000”).
4.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1627-1628.